Digests

Kovacevic v. Canada

A-553-02

2003 FCA 293, Rothstein J.A.

7/2/03

9 pp.

Issue where, under Excise Tax Act, notice required to be sent by Minister of National Revenue (Minister), what evidence of mailing required for compliance with Act?-- Pursuant to ss. 301(5), 335(1), notice must be sent by registered or certified mail--Minister says notice of decision sent by registered mail--Evidence of sending of notice by affidavit to which attached as exhibit, post office certificate or registration or true copy of relevant portion--Affidavit of Minister's official in case at bar does not attach post office certificate of registration or true copy of relevant portion-- Minister's official testified mail-room only keeps records for "a year or two years and then they discard it"--When documents required by legislation to be sent by registered or certified mail and where legislation prescribes required proof of mailing, requirements must be met in order to comply with legislation--In case at bar, s. 335(1) provides post office certificate of registration to be attached to affidavit of person swearing it--S. 335(1) establishes higher standard of proof of mailing than in case where no formal requirements for mailing provided in legislation--Inexplicable Agency would discard certificates of registration after "a year or two"-- Unavailability of post office certificate of registration and absence of any equivalent evidence of registered mailing taking place fatal to Minister's motion--Existence in file of signed copy of notice of decision without any explanation may be indication document in fact not sent--Appeal allowed, decision of Tax Court quashed and matter remitted to Tax Court to dismiss appellant's appeal in Tax Court on grounds Minister failed to prove mailing of Notice of Decision confirming appellant's assessment in accordance with requirements of Act--Excise Tax Act, R.S.C., 1985, c. E-15, ss. 301(5) (as enacted by S.C. 1990, c. 45, s. 12), 335(1) (as enacted idem).